Many employers are confused about the requirements of when employees who have had COVID-19 or been exposed to COVID-19 can return to work.  They are rightfully confused because there are many different federal, state, and local guidelines being published the contradict each other.  So I wanted to take a step back and address the simple questions of when can an employee who has had COVID-19 return to work, and can employers require a doctor’s note from the employee prior to returning to work?

When can employees who had COVID-19 return to work?

The CDC has set forth that people who have had COVID-19 or have been caring for someone sick at home can stop home isolation under the following conditions:

  • If you will not have a test to determine if you are still contagious, you can leave home after these three things have happened:
    • You have had no fever for at least 72 hours (that is three full days of no fever without the use medicine that reduces fevers)
      AND
    • other symptoms have improved (for example, when your cough or shortness of breath have improved)
      AND
    • at least 7 days have passed since your symptoms first appeared
  • If you will be tested to determine if you are still contagious, you can leave home after these three things have happened:
    • You no longer have a fever (without the use medicine that reduces fevers)
      AND
    • other symptoms have improved (for example, when your cough or shortness of breath have improved)
      AND
    • you received two negative tests in a row, 24 hours apart. Your doctor will follow CDC guidelines.

Can employers require a doctor’s note for employees to return to work? 

The answer to this question depends on which set of guidelines one reviews.  OSHA and the CDC provide guidance that employers should not ask for doctor’s notes, but the EEOC’s guidance states employers can require doctor’s notes as well as employee testing before returning to work.

OSHA: Should not require doctor’s note.

OSHA has issued guidelines setting forth that employers should “not require a healthcare provider’s note for employee’s who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.”

https://www.osha.gov/Publications/OSHA3990.pdf (see page 11)

CDC: Should not require doctor’s note or testing.

CDC’s guidance is similar to OSHA’s guidance.  The CDC states:

Employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. Healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.

However, the CDC then refers reader’s to the Department of Labor’s and the EEOC’s websites.

EEOC: Can require doctor’s note and testing.

Contrary to OSHA and the CDC, the EEOC provides that employers can require employees to provide a doctor’s note prior to returning to work.  The EEOC notes, however, that as a practical matter it may be difficult for the employee to obtain the doctor’s note, so “new approaches may be necessary” for employers to obtain some type of authorization from a health care provider permitting the employees to return to work.

As previously written about here, on April 23, 2020, the EEOC provided guidance that employers may choose to administer COVID-19 testing to employees before returning to work.

As always, employers need to also address their state and local ordinances to see if there may be any other requirements and ensure they are in compliance with these as well.


On Wednesday, April 29, the Los Angeles City Council adopted the Worker Retention and Right of Recall Ordinances.  During the April 22 Council meeting, the Ordinances were amended, among other things, to cover only certain businesses.  Specifically, only airport businesses, commercial property businesses, event center businesses, and hotel businesses (and restaurants within the physical premises of hotels) are covered by the Ordinances.

The Right of Recall Ordinance would now require covered employers to make a written offer of recall to a Laid Off Worker –as defined in the Ordinance– of any position which is or becomes available for which the worker is available.  To be qualified, the laid off worker must have either 1) held the same or similar position at the same site of employment at the time of the most recent separation, or 2) is or can be qualified for the position by providing the same training that a brand new hire would receive for the position.

The Worker Retention Ordinance would require the specific businesses listed above to retain certain workers if a change in ownership or control (such as a sale, acquisition, etc.) occurs within 2 years from the date of the COVID-19 emergency declaration.  Amongst other things, this Ordinance would require the “successor business” to hire from a preferential list provided by the “incumbent business” for at least 6 months after the successor business opens its operation to the public.  The Ordinance would also require the successor business to retain such workers for at least 90 days, and conduct performance evaluations after the 90-day period.

For a more detailed summary of both Ordinances, read our previous post here. The Ordinances are currently before Mayor Garcetti, who has until May 11, 2020 to approve or veto them.  As Mayor Garcetti previously expressed his intent of signing off on these Ordinances, it is very likely the Ordinances will be chartered and become effective rather soon.  We will continue to monitor any new developments.

Due to the effect COVID-19 has had on the economy and across all industries, Los Angeles City has been in the forefront of protecting the workforce by providing further benefits and protections to workers.  Simultaneously, however, new worker protections effectively translate into new burdens on employers.

Last week, the City Council addressed and amended two proposed ordinances: the Worker Retention Ordinance and the Right to Recall Ordinance.  These Ordinances would require certain businesses to continue to employ workers after a change in control (Worker Retention Ordinance) and make an offer of re-employment to a qualified laid off worker (Right to Recall Ordinance).  These Ordinances have not been finalized nor signed by the Mayor, and as such are not in effect as of today’s date.

Below is a brief summary of what the Ordinances would require, as currently drafted.

Right of Recall Ordinance

What would this Ordinance require?

A covered employer (see below) would be required to make a written offer of recall to a qualified Laid Off Worker (see below) of any position which is or becomes available after the Ordinance goes into effect.  The written offer must be sent to the qualified Laid Off Worker’s last known mailing address, electronic mail, and text message phone number.

The Laid Off Worker would have 5 days (decreased from 10 days) to accept or decline the offer of recall.

What employers would be covered under this Ordinance?

Previously, the Ordinance covered all employers that earned gross receipts in excess of $5,000,000 in 2019.  The amendment to the Right of Recall Ordinance narrows the businesses it would apply to. Now, only the following business –as defined in the Ordinance– would be subject to the recall requirements:

  • Airport Businesses;
  • Commercial Property Businesses (owner, operators, managers, or lessees of non-residential property that employ 25 or more janitorial, maintenance or security service workers);
  • Event Center Businesses (including concert halls, stadiums, sports arenas, convention centers, etc.); and,
  • Hotel Businesses (those with 50 or more guestrooms or that earned gross receipts in excess of $5,000,000 in 2019).

The Ordinance, however, excludes airlines and those businesses whose contract with the airport contain a pre-existing rehire requirement.  Similarly, only janitorial, maintenance and security workers of commercial property businesses would be covered by the Ordinance.

Although the Ordinance now excludes restaurants from its coverage, it is important to note that any restaurant physically located on hotel premises are covered.

Who would be a covered “qualified Laid Off Worker”?

Only Laid Off Workers are subject to the right of recall.  A Laid Off Worker is any person who:

  • performs at least 2 hours of work in a particular week within the City of Los Angeles for a covered employer;
  • worked for the employer for 6 months or more; and,
  • was laid off due to lack of business, reduction in workforce, or other economic non-disciplinary reasons on or after March 4, 2020. The Ordinance creates a rebuttable presumption that any lay off occurring on or after March 4, 2020 was due to a “non-disciplinary reason.”

Further, a Laid Off Worker is qualified if he/she:

  • held the same or similar position at the same site of employment at the time his/her most recent separation from active service with the employer; or,
  • is or can be qualified for the position with the same training that would be provided to a new worker hired for that position.

Would any type of worker be excluded from coverage?

The Ordinance explicitly excludes managers, supervisors, confidential employees or “a person who performs as their primary job responsibility sponsorship sales for an Event Center Employer” from coverage.

Does the Ordinance create a private cause of action?

Yes, the Ordinance would create a private cause of action for covered qualified Laid Off Workers, including reinstatement, lost pay and benefits, and punitive damages.

However, as amended, the Ordinance would impose conditions precedent on employees prior to filing a lawsuit against the employer:

  • the worker would be required to provide written notice to the employer delineating the specific provisions of the Ordinances that have been violated, as well as the facts supporting such allegations; and,
  • the employer would have 15 days from receipt of the notice to cure the alleged violations.

The Ordinance would also permit a court to award reasonable attorneys’ fees and costs to an employer who prevails and obtains a court determination that the worker’s lawsuit was frivolous.

Worker Retention Ordinance

What would this Ordinance require?

In general, the Ordinance would subject specific businesses (see below) to retain certain workers when a change in ownership or control occurs within 2 years after the declaration of emergency due to COVID-19.  In other words, the Ordinance would apply to businesses that have or will change ownership or control from March 1, 2020 through March 1, 2022.  The “incumbent” employer/business would be required to post, in a conspicuous place, a written notice advising employees/workers of the change in control within 5 business days following the

Specifically, the Ordinance would require that, within 15 days of the execution of an agreement to sell, acquire, etc. (a “transfer document”), the incumbent employer/business provide to the new successor business the name, address, date of hire and occupation classification of each worker.  The incumbent employer/business would be required to post, in a conspicuous place, a written notice advising employees/workers of the change in control within 5 business days following the execution of the transfer document.  The notice must remain on the premises for 6 months after the business is open to the public and under the control of the successor business employer.

The successor business would then be required to maintain a preferential hiring list of those workers, and hire from that list for 6 months after the new business opens to the public.

Similarly, for those workers that are hired from the list described above, the new successor business would have to retain each such worker for at least 90 days.  After the 90-day period, the successor business would be required to perform written evaluations for each employee.  If satisfactory, the successor business would then have to consider offering the worker continued employment.

What businesses would be covered under this Ordinance?

The covered businesses are identical to those under the Right to Recall Ordinance.  Only Airport Businesses, Commercial Property Businesses, Event Center Businesses, and Hotel Businesses would be covered under this Ordinance.

Which workers would be covered under this Ordinance?

Only those workers who are employed by the incumbent employer/business and

  • that have worked for the employer for 6 months or more;
  • whose primary place of employment is a covered business subject to a change in control;
  • who are employed or contracted to perform work functions directly by the incumbent employer/business or by a person who has contracted with the incumbent employer/business to provide services to that employer; and,
  • worked for the employer on or after March 1, 2020 and before the execution of the transfer document.

Would any type of worker be excluded from coverage?

The Ordinance explicitly excludes managerial, supervisory, or confidential employees from coverage.

Does the Ordinance create a private cause of action?

Yes, even after the amendment, the Ordinance would create a private cause of action for covered workers, including reinstatement, front or back pay, and the value of benefits the worker would have received under the former employer’s benefits plan.

Just as the Right to Recall Ordinance, however, this Ordinance would require that, prior to filing a lawsuit, the worker:

  • Provide written notice to either the current employer and/or the successor business employer of the specific provisions of the Ordinance alleged to have been violated, as well as the facts to support the alleged violations; and,
  • The current employer/successor business employer would have 15 days from receipt of the notice to cure the alleged violations.

Again, these Ordinances are not yet in effect and remain subject to further changes/amendments.  We will continue to monitor them closely, and will provide updates as this issue continues to develop.

Today, April 23, 2020, the EEOC issued new guidance to employers that permits mandatory testing of employees for the presence of the COVID-19 virus prior to entering the workplace.  The EEOC issued the guidance on its FAQ, What You Should Know About COVID-19 ant the ADA, the Rehabilitation Act, and Other EEO Laws.  In question A.6. the EEOC explained that the ADA requires any mandatory medical tests of employee be “job related and consistent with business necessity” and that “an individual with the virus will pose a direct threat to the health of others.  Therefore, an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”

The EEOC’s guidance came with a few caveats for employers as well:

  • Employers should ensure the tests are accurate and reliable.
  • Employers may consider the incidence of false-positives or false-negatives associated with a particular test.
  • Employers must remember that accurate testing only reveals if the virus is currently present, and a negative test does not mean an employee will not acquire the virus later.

What does this mean for employers?

Practically speaking, very few employers at this point can obtain COVID-19 tests for their workforce at this time, so currently the guidance has very little effect for employers.  However, when tests become more prevalent, employers may use them in their toolkits and planning on how to re-open their businesses and planning for what steps they will take to protect their workforce.

The guidance still leaves open some questions, such as:

  • Can employers require employees to obtain a test on their own prior to returning to work? The question addressed by the EEOC was phrased in the context of whether an employer can administer a COVID-19 test to employees.
  • If an employer can require employees to obtain a test on their own, who is responsible for paying for the tests?
  • Does this guidance leave employers who cannot obtain tests or afford to pay for testing of their workforce open to potential liability because they did not test their employees?

The EEOC’s guidance also sets forth that employers need to remember that the ADA requires all medical information about employees must be stored separately from their personnel file and limit the access to this confidential information.  The EEOC explains in question B.1. that employers may maintain all medical information related to COVID-19 in existing medical files (employers do not need to create new COVID-19 files).  These medical files would include “an employee’s statement that the has the disease or suspects he has the disease, or the employer’s notes or other documentation from questioning an employee about symptoms.”

 

Governor Newsom

On April 16, 2020, Governor Gavin Newsom issued Executive Order N-51-20, which provides new paid sick leave to certain food service workers. Citing a need to fill a “gap” left by the federal Families First Coronavirus Response Act, which applies solely to employers with fewer than 500 employees, this new Executive Order provides up to 80 hours of “COVID-19 Supplemental Paid Sick Leave” to defined food sector workers.

(Zaller Law Group is hosting a free webinar on Friday, April 24, 2020, to discuss this new Executive Order and answer your questions. Join us for Understanding California’s New Paid Sick Leave Requirements For Food Sector Employees.)

Here is what you need to know.

What employers are covered?

Executive Order N-51-20 applies to employers with 500 or more employees in the United States, including full-time and part-time workers but not including independent contractors. Employees on leave of any kind are counted, but employees furloughed or laid off are not counted unless and until they are reemployed.

The Executive Order expressly applies to any “Delivery Network Company” (companies that use a website or mobile app to enable local delivery of products/food from third-party merchants; think Postmates or GrubHub) and any “Transportation Network Company” (companies that provide transportation services using online apps/platforms that connect passengers with drivers using a personal vehicle; think Uber or Lyft) that employs 500 or more employees.

As with the FFCRA and FMLA, common employees of joint or integrated employers must be counted together.

There is one exception: if, as of April 16, 2020, the employer already provides a “supplemental benefit” such as paid leave that provides the same or greater benefit provided by this Executive Order, then the employer does not have to provide the COVID-19 Supplemental Paid Sick Leave.

What employees are entitled to Supplemental Paid Sick Leave?

The Executive Order applies to “Food Sector Workers,” which it defines as any person who satisfies one of the following criteria:

Continue Reading California’s COVID-19 Supplemental Paid Sick Leave Order: What Employers Need to Know

Many essential businesses operating in Los Angeles are asking what if any obligations do they have in regards to customer face coverings coming to their businesses for goods and services.  As explained below, the confusion stems from the County’s and City’s often contradictory orders and guidance issued on this topic.

County of Los Angeles

The Los Angeles County Safer At Home Order requires all essential businesses open to members of the public to post a social distancing protocol by April 16, 2020.  The Social Distancing Protocol must be posted at or near the entrance of the facility and easily viewable by the public and employees.  A copy of the Social Distancing Protocol must also be provided to each employee performing work at the facility.

The Social Distancing Protocol must set forth how the company will, among other items, require members of the public who enter the facility wear a face covering during their time in the facility.  See section 2(g).  This requirement is creating a lot of questions from businesses about what their obligations are to enforce this face covering requirement.

However, contradictory to the requirement that anyone who is entering an essential business must have a face covering, the Los Angeles County Department of Public Health’s Guidance for Cloth Face Coverings states the following:

When should I wear a cloth face covering?

You are asked to wear a cloth face covering over your nose and mouth when you must be in public for essential activities, such as shopping at the grocery store. Wearing a cloth face covering does not eliminate the need to physically distance yourself from others and to wash your hands frequently.

Is a face cover required?

Everyone is asked to wear a face covering when they are interacting with others who are not members of their household in public and private spaces. Face coverings are an additional tool that individuals should use to help slow the spread of COVID-19 but does not replace other social distancing requirements.

This Guidance from Los Angeles County sets forth that it is not a requirement, but that “everyone is asked to wear a face covering” when interacting with others.  The County’s messaging on this issue is not clear, and one can easily see how the public and businesses are confused on this issue.

City of Los Angeles

The City of Los Angeles also has published contradictory statements about the requirement of face coverings.

Los Angeles City Worker Protection Order states:

All workers at essential services businesses “must wear face covering over their noses and mouths while performing their work.  At this time, the face covering are not medical-grade masks or N95 respirators, but rather, fabric coverings, such as scarves and bandanas.

The workers are required to wash the face coverings at least once daily, and single use face coverings must be properly discarded into the trash.  Employers are required to provide these face coverings to the employees.

In regards to customers and visitors to essential services businesses, the City’s Order provides that they “must wear face coverings over their noses and mouths to provide additional protection for employees and customers. At this time, the face coverings need not be medical-grade masks or N95 respirators, but can be fabric coverings, such as scarves and bandana coverings.”  The Order sets forth the business owners “may refuse admission or service to any individual who fails to ear face covering as required by this Order.”   However, contrary to the requirement that visitors and customers “must wear face coverings,” the Mayor’s Order contains a statement later in the Order that the Mayor encourages all people to wear face coverings over their noses and mouths when they are outside their homes to obtain essential services and goods, but “[t]hese are recommendations and not requirements.”

So are businesses required to refuse service to customers who are not wearing facial covers in the City of Los Angeles?

Good question, and the Mayor should clarify this contradiction in the Order.  However, despite the contradictory requirements in the Mayor’s Order, it is clear that there is no requirement that businesses are required to enforce this “requirement,” but that businesses “may” refuse service to customers who are not wearing face covers.  At this point, businesses are not required to refuse service to a customer who is not wearing a face cover.

The Los Angeles County Board of Supervisors is considering an emergency measure that would place further requirements on businesses operating within the County of Los Angeles.  Just as the City of Los Angeles passed two weeks ago, the County is considering requiring employers to provide 80 hours of paid sick leave.  Moreover, the County is reviewing a potential ordinance setting forth which employees must be rehired after being laid off due to COVID-19.  Part of the order being considered by the Board is a requirement of “right of recall” for workers:

The provision of “right of recall” for workers laid off due to the COVID-19 pandemic to be first rehired and “worker retention” policies in case businesses file bankruptcies and/or are sold as a result of the COVID-19 crisis (e.g., hospitality industry consolidation).

The Board meeting take place at 9:30 a.m. on April 14, 2020, and can be viewed here: http://bos.lacounty.gov/Board-Meeting/Board-Agendas

Any comments on the proposed motion should be directed to the Chair of the Board, Janice Hahn:

Janice Hahn
Fourth District
(213) 974-4444
Fax: (213) 626-6941
website: hahn.lacounty.gov
email: FourthDistrict@bos.lacounty.gov
Twitter: @SupJaniceHahn

 

By Rick Reyes

On Wednesday, April 1, 2020, the Department of Labor (DOL) issued a temporary rule addressing and clarifying multiple issues with respect to the Families First Coronavirus Response Act (FFCRA), including the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (FMLA Expansion).  The 124-page temporary rule provides useful guidance to employers across the nation.  For the reader’s convenience and in an attempt to make the information more accessible, we approach the temporary rule in a topic-by-topic Q&A format.  If you have any specific questions relating to your business or company, please always consult with experienced legal counsel.

Employers Subject to the FFCRA

1. To which employers does the FFCRA apply to?

Employers with less than 500 employees, regardless of whether they are for-profit or non-profit are subject to the FFCRA.

2. Which employees are included in the 500-employee threshold?

Full and part time employees, employees who are on any leave of absence, temporary employees who are jointly employed by the employer and another employer, and day laborers supplied by a temporary placement agency.

3. Are there any type of employees who should not be included in calculating the 500-employee threshold?

Independent contractors, employees who have been laid off or furloughed and not subsequently reemployed, and employees outside of the U.S. or territory, are excluded from the calculation

4. I currently employ less than 500 employees. What if in the future, but prior to December 31, 2020, my workforce exceeds 500?

Whether an employer is required to comply with the leave requirements under the FFCRA depends on the number of employees at the time the employee would take the leave. For example, if the employer has 450 employees on May 5, 2020, the employer must comply.  However, if the employer then subsequently hires 60 employees on August 3, 2020, thereby raising the number of total employees to 510, the employer would no longer be covered under the FFCRA.

5. Are there any exempted employers from FFCRA?

The regulations provide for a “Small Business Exemption.”  A small business is an employer with less than 50 employees whose compliance with the FCCRA would jeopardize the viability of the business as a going concern.  The regulations further clarify three (3) situations in which such an exemption may apply.  First, if granting the leave would cause the employer’s expenses and financial obligations to exceed available business revenue.  Second, if the absence of the employee(s) requesting such leave would pose a substantial risk to the financial health or operational capacity of the employer because of the employee’s specialized skills, knowledge of the business or responsibilities.  Third, the employer cannot find enough workers who are able, willing, and available at the time and place needed to perform the labor or services and allow the employer operate at minimal capacity.  For further information regarding the Small Business Exception, see Questions 36 and 39, below.

 

Employee Eligibility for Leave Under the FFCRA

6. Which employees are eligible for leave under the FMLA expansion?

Only those employees how have worked for the employer for at least 30 calendar days immediately prior to the day that the employee’s leave would begin. For example, if an employee requests leave on April 1, 2020, the employee must have had been employed by the company as of March 2, 2020.  Health care providers and emergency responders may be excluded (See Questions 9 and 10, below).

7. Which employees are eligible for leave under the EPSLA?

All employees. Health care providers and emergency responders may be excluded (See Questions 9 and 10, below).

8. Are there any employees specifically excluded from the FFCRA leaves of absence?

The FFCRA permits employers from excluding from coverage “emergency responders” and “health care providers.”

9. Which employees are “emergency responders?”

Anyone necessary for transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes, amongst others: emergency medical services personnel; physicians; Nurses; public health personnel; Emergency medical technicians; Persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency

10. Which employees are “health care providers?”

Anyone employed at a: doctor’s office; hospital; health care center; clinic; post-secondary educational institution offering health care instruction; Medical school; local health department or agency; nursing facility; retirement facility; nursing home; home health provider; any facility that performs laboratory or medical testing; pharmacy; or any similar institution, employer or entity

11. If I lay off an employee on or after March 1, 2020, and subsequently rehire him or her, is the employee entitled to leave under the FFCRA?

It depends. An employer who rehires such an employee needs to provide leave of absence under the FFCRA only if the employee was on the employer’s payroll for 30 or more of the prior 60 calendar days prior to the date the employee was laid off.

 

Qualifying Reasons for Leave Under the FFCRA

12. The FMLA Expansion provides that an employee may request leave if he or she is unable to work due to a need to take care of his or her child under 18 years old because of a school closure or unavailability of the child’s care provider. Does this mean that the employer may not request such leave for children older than 18?

Generally, that is correct. However, in the temporary rule, the DOL explains that an employee may take leave under the FMLA expansion to take care of a child 18 years or older who is incapable of self-care due to a mental or physical disability.  This is also true for leave under the EPSLA for this particular qualifying reason.

13. There are six (6) different qualifying reasons for leave under EPSLA. If my company does not have any work for the employee (such as when there has been a local or state-mandated closure), do I have to provide and pay for leave under the EPSLA?

An employer is not required to provide or pay for leave if there is no work to be performed by the employee.

14. There are six (6) different qualifying reasons for leave under EPSLA. If the physical work location is closed due to COVID-19, but my company permits teleworking, can an employee still take a leave of absence?

No for at least 2 of the 6 qualified reasons. If the employer permits the employee to perform his or her work from the location where the employee is being quarantined or isolated (Qualifying Reason No. 1), or the location from which the employee is awaiting medical results (Qualifying Reason No. 3), then the employee is not entitled to EPSLA. This is true, absent any “extenuating circumstances that prevent the employee from performing such work” (such as severe symptoms due to COVID-19).

15. An employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Qualifying Reason No. 3). May such employee take leave under EPSLA while awaiting the results?

Yes, unless the employer permits the employee to perform his or her work from the location where the employee is waiting (i.e., telework).

16. An employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis (Qualifying Reason No. 3), but failed to meet the criteria and is not tested. Rather, he is advised to self-quarantine.  Can the employee take leave under EPSLA?

While such employee may not take leave under Qualifying Reason No. 3, he or she may be eligible under Qualifying Reason No. 2 (being advised by a health care provider to self-quarantine).

17. The employee is wants to take leave to take care of an individual who is unable to work due to a federal, state or local quarantine or isolation order, or who has been advised to self-quarantine by a health care provider (Qualifying Reason No. 4). Can such “individual” be anybody?

The temporary rule clarifies that the employee must have a personal relationship with such individual. Examples include: immediate family members, a roommate, or any similar person with whom the employee has a relationship that creates an “expectation” that the employee would care for the person.

18. The employee wants to take a leave of absence under EPSLA because his or her child’s school or place of care is closed, or the child’s provider care is unavailable, due to COVID-19 related reasons (Qualifying Reason No. 5). However, the employee’s spouse can and is taking care of the child already.  May the employee still take a leave of absence under this qualifying reason?

An employee is not entitled to take a leave of absence under this Qualifying Reason if another suitable individual (such as a co-parent, co-guardian, etc.) is available to care for the employee’s child’s needs.

19. Qualifying Reason No. 6 allows an employee to take a leave of absence under EPSLA if he or she is experiencing any other “substantially similar condition” as specified by the Department of Health and Human Services. What are examples of a “substantially similar condition” as of right now?

Currently, the Department has not specified any substantially similar condition vis-à-vis COVID-19. Therefore, an employee may not currently take a leave of absence under Qualifying Reason No. 6.

 

Wage and Hour Issues

20. How must employees be compensated for leave of absence under the FMLA Expansion?

Employees must be compensated at the regular rate of pay. This is computed over a 6-month period ending on the date on which the employee first takes FMLA Expansion leave.  For example, if an employee takes FMLA Leave on June 1, 2020, the regular rate of pay would be calculated during the period of January 1, 2020 through June 1, 2020.

21. How much compensation are employees entitled to for leave of absence under the FMLA Expansion?

For each day of FMLA Expansion leave, the employer must pay the employee 2/3 of the employee’s regular rate times the number of hours the employee would normally be scheduled to work on that day. For example, if an employee would have worked 8 hours on that given day, the employee would be entitled to 8 hours at 2/3 the employee’s regular rate of pay.  Note, however, that the employer is not required to pay for the first 2-weeks of FMLA Expansion leave, unless the employee is concurrently taking EPSLA leave.

22. Are there any caps on the amount employers are required to pay employees for leave of absence under FMLA Expansion?

Employees cannot receive more than $200 per day, $1,000 per week, or $10,000 in the aggregate.

23. How must employees be compensated for leave of absence under EPSLA?

Employees must be compensated at the highest applicable wage rate of (1) the employee’s regular rate of pay, (2) the Fair Labor Standards Act minimum wage, or (3) the highest applicable state or local minimum wage. Note, Option (2) will never be applicable to California employers.

24. How much compensation are employees entitled to for leave of absence under EPSLA?

It depends on the underlying Qualifying Reason. For Qualifying Reasons 1 through 3 (those that require leave due to care for the employee’s own health), the employer must pay the employee his or her full-rate of pay.  For Qualifying Reasons 4 through 6 (leave due to care for someone other then the employee), the employer must pay the employee 2/3 his or her rate of pay.

25. Are there any caps on the amount employers are required to pay employees for leave of absence under EPSLA Leave?

For Qualifying Reasons 1 through 3, employees cannot receive more than $511 per day, $2,555 per week, or $5,1100 in the aggregate.  For Qualifying Reasons 4 through 6, employees cannot receive more than $200 per day, $1,000 per week, or $2,000 in the aggregate.

 

Traditional FMLA, FMLA Expansion and EPSLA Interplay

26. Can an employee take EPSLA and FMLA Expansion concurrently to care for his or her child?

Under this situation, the employee would be entitled to 12 weeks of paid leave.  This is because the first 2 weeks would be paid under EPSLA and the remaining 10 weeks would be paid under FMLA Expansion.   Of course, this is only if the employee decides to take the leave of absence concurrently.

27. My employee has already exhausted leave under EPSLA for a Qualifying Reasons other than to take care of his or her child. Would the employee still be entitled to the 12 weeks of paid leave?

Generally, no. If the employee has already exhausted (i.e., taken the full 2 weeks under EPSLA), and then requests leave of absence under FMLA Expansion, the employee would be entitled to the full 12 weeks of leave, but only 10 of those weeks would be paid.  The situation would be different if the employee has only partially exhausted leave under EPSLA or if the employer’s PTO/Vacation policies provide for greater paid leave benefits.

28. Prior to the FFCRA going into effect, my employee had previously exhausted all of his or her leave under the traditional FMLA. Is this employee entitled to additional leave under the FMLA Expansion?

No, the FMLA Expansion does not create additional rights. As such, if the employee has already taken 12-weeks of leave under the traditional FMLA, the employer need not grant additional paid leave under the FMLA Expansion.

 

Intermittent Leave

29. May an employee take intermittent leave under the FFCRA, and are there any specific requirements?

Yes, an employee may take intermittent leave. Both the employer and the employee must agree to intermittent leave (specifically the increments of time in which leave may be taken), and even though not required, the DOL recommends that such agreement be reduced in writing.

30. My business does not have the capability to allow employees to telework. Can an employee take intermittent leave for on-site work?

Generally, no. The temporary rule stated that an employee may only take leave intermittently (in any increment) in circumstances where there is minimal risk that the employee will spread COVID-19 to other employees at the worksite.  Therefore, intermittent leave under this circumstances would only be possible for Qualifying Reason 5 (taking care of the employee’s child) and the FMLA Expansion.

 

Poster and Notice Requirements

31. I know that employers are required to place a poster in the workplace or to provide the notice/poster to employees via email or mail. Many of my employees speak a language other than English. Am I legally required to provide employees with the poster in their language?

While the Department of Labor has provided a Spanish version of the poster, employers are not required to provide a translated notice to their employees.

32. Under the traditional FMLA, employers are required to provide certain notices to employees requesting or taking leave of absences for a qualifying reason. Am I required to provide such notices to employees taking a leave of absence under the FMLA Expansion?

The DOL has determined that employers are not required to provide employees with notices of eligibility, right and responsibilities, or written designations that would be traditionally required for FMLA leave allowances.

33. Did the temporary rule provide any further clarification on what documentation must the employee provide to employers prior to taking a leave of absence under either the EPSLA or FMLA Expansion?

The DOL explained that the documentation will depend on the underlying Qualifying Reason.

For Qualifying Reason 1 (employee unable to work due to federal, state or local quarantine order), the employee must provide the name of the government entity that issued the quarantine or isolation order to which the employee is subject.

For Qualifying Reason 2 (employee was advised by a health care provider to self-quarantine), the employee must provide the name of the healthcare provider who advised him or her to self-quarantine.

For Qualifying Reason 4 (employee is taking care of an individual eligible under Qualifying Reason 1 or 2, above), the employee must provide either (1) the name of the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual of self-quarantine

For Qualifying Reason 5 (leave to take care of the employee’s child), the employee must provide the name of the child being cared for, the name of the school, place of care, or child-care provider that closed or became unavailable due to COVID-10 reasons and a statement representing that no other suitable person is available to care for the child during the period of requested leave (See Question 18, above). Note that this applies tom both the EPSLA and FMLA Expansion.

 

Recordkeeping

34. What am I supposed to do with the documentation that the employee submits in support of his or her request for leave of absence under FFCRA?

Employers are required to retain all documentation in relation to FFCRA leave requests for four (4) years, regardless of whether the leave was granted or denied.

35. What if the request and supporting statements were made orally by the employee?

If an employee provides oral statements to support his or her request for EPSLA or FMLA Expansion leave, the employer is required to document and retain such information for four (4) years, regardless of whether the leave was granted or denied.

36. I believe that my company qualifies for the “Small Business Exception” (See Question 5, above). Do I need to preserve any records?

The employer must document its authorized officer’s determination that the prerequisite criteria for that exemption is satisfied.  The employer must retain these documents for four (4) years.

 

Return to Work After Leave Under EPSLA/FMLA Expansion

37. Is an employee returning from leave under the EPSLA/FMLA Expansion entitled to reinstatement?

The employee is generally entitled to be restored to the same or an equivalent position upon return from EPSLA or FMLA Expansion, just as if the employee would be returning to work after traditional FMLA leave.

 38. Are there any exceptions or instances in which an employee would not be entitled to reinstatement?

Yes:

    1. First, certain employment actions that would have affected the employee regardless of whether the leave was taken may not require reinstatement. For example, if an employee is laid off he or she would not be entitled to reinstatement.  However, the employer must be able to show that the employee would have been laid off even if he or she had not taken any leave (such as if the business closed down).
    2. Second, for those employers with less than 25 employees, reinstatement is not required if (1) the employee took leave of absence under FMLA Expansion or Qualifying Reason No. 5 under EPSLA (taking care of the employee’s child); (2) the employee’s position no longer exists due to economic or operating conditions that affect the employee and are caused by a public health emergency during the period of the employee’s leave; (3) the employee made reasonable efforts to restore the employee to the same or equivalent position; and, (4) if the reasonable efforts fail, the employer makes a reasonable effort for a period of time (defined as 1 year after the reason for leave concludes or the date 12 weeks after the employee’s leave began, whichever is earlier) to contact the employee if an equivalent position becomes available.

 

Miscellaneous

39. If I believe my company qualifies under the Small Business Exception, do I need to submit an application or documentation to the Department of Labor?

Employers need not apply to qualify for this exemption nor are they required to submit any documents to the DOL.  Rather, they must retain these documents (See above).

40. If I am required to provide leave under the FFCRA, do I need to provide any further leave under any other law?

Subject to certain limitations (See Questions 27 and 28, above), yes. Leave under the FFCRA is in addition to, rather than a substitute for, other sources of leave which the employee had already accrued, was already entitled to, or had already used, before the FFCRA became effective.  This includes leaves of absence under state or local law, or any pre-existing leave of absences provided by the employer (e.g., PTO/Vacation).

41. Some of my employees took unpaid or partially paid leave before the FFCRA went into effect (i.e., April 1, 2020). Am I required to pay for such leave now that the law is in effect?

Employees do not have any right or entitlement to be paid for leave taken for Qualifying Reasons under the FFCRA prior to April 1, 2020.  The FFCRA is not retroactive.

42. If I terminate any employee after the FFCRA went into effect (April 1, 2020), am I legally required to “cash out” their unused FFCRA leave?

No employer has any obligation to provide financial compensation or other reimbursement for unused EPSLA or FMLA Expansion leave.

43. If I hire an employee who was provided with and took all of his or her available leave of absence under the FFCRA through his or her former employer, am I required to provide the new hire with further leave under the FFCRA?

Once an employee takes the maximum 80 hours of leave, he or she is not entitled to any paid sick leave from a subsequent employer.  Note, however, if the new hire has not previously exhausted all 80 hours, then the new employer must provide paid sick leave until the 80 hours have been exhausted.

44. If an employee is taking leave under the FFCRA, must they continue to receive company-provided health care coverage?

The employee must continue to receive such health benefits during the leave.

45. I believe employers will receive tax credits for leave paid to employees under the FFCRA. Is this correct?

Yes, that is correct. Employers may qualify for reimbursement through refundable tax credits for: (1) all qualifying EPSLA and FMLA Expansion wages paid to an employee, and (2) for all allowable costs related to the maintenance of health care coverage under any group health care plan while the employee is on the leave provided under FCRA.

By Anne McWilliams

In struggling to stay current on rapidly changing workplace rules and regulations in the midst of this pandemic, essential business operators need to address yet another new reality:  there is a good chance an employee will test positive for COVID-19, or has been exposed to someone suspected or confirmed with COVID-19. The CDC has issued guidance on these subjects. Below are checklists and recaps of good workplace safety practices, based on the CDC guidelines. Check your local government requirements that may supersede the CDC guidelines, like the new City of Los Angeles Worker Protection Order. This summary is based on current information, and the subject matter is developing and changing as this public health crisis unfolds.

What If An Employee Tests Positive For COVID-19

  • Immediately upon notice of a confirmed case, separate the employee from other employees and send the employee home, or instruct the employee to remain at home.
  • Require a written authorization from the employee’s healthcare provider before allowing the employee to return to work.
  • Notify all employees of their possible exposure to COVID-19 and instruct them about how to proceed based on the CDC Public Health Recommendations for Community-Related Exposure. We recommend that you notify other employees in writing.
  • Maintain strict confidentiality of the infected employee’s name, symptoms and diagnosis, to ensure compliance with medical information privacy or disability discrimination laws.
  • Ask the infected employee who else he or she has come in contact with or worked in close proximity to (within a few feet) through or at work during the previous 14 days.
  • These employees may or may not be required to be sent home (based on the below 4/8/20 CDC guidelines). Speak with these employees on an individual basis and ask about their symptoms (fever, cough, shortness of breath, acute respiratory conditions), and take their temperature. Maintain confidentiality of all information disclosed to you by the employees.
  • Close the premises for cleaning and disinfecting pursuant to the guidelines of the CDC. The CDC recommends waiting 24 hours, if feasible, before cleaning and disinfecting.
  • After re-opening, regularly clean and disinfect high-touch surfaces and shared workplace areas, equipment and furniture, and maintain restrooms in a clean and sanitary condition, with sufficient supplies for good hand hygiene.
  • Take employees temperatures before they start their shift, and one additional time during their shift. This is paid time. Treat information on temperatures as confidential.
  • Provide employees with cloth-based covers and require employees to wear the covers over their mouth and nose at all times while working or on the work premises.
  • Employees who are observed to have acute respiratory illness symptoms should be sent home immediately. Reporting time pay may be triggered. Keep this information private.
  • Employees who feel sick or have symptoms of COVID-19 should be actively encouraged to go home. Reporting time pay may be triggered. Keep this information private.
  • Encourage employees to report symptoms of COVID-19. Do not disclose this information.
  • Implement protocols for employees to wash their hands with soap every 30 minutes, and require employees to wash their hands for at least 20 seconds with soap after blowing their nose, coughing, or sneezing and after using the restroom. This is paid time on the clock.
  • Implement a policy of physical distancing, as much as feasible given your operations, and find ways to create physical space to minimize close contact as much as possible.
  • Train employees and cleaning staff in conformity with the CDC guidelines, and maintain sufficient CDC-approved disinfecting supplies.
  • Educate and train employees on good hand hygiene, and regularly post or circulate information on how employees can reduce the spread of COVID-19.
  • Any customer or visitor to the work premises must wear cloth-based covers over their mouths and face before entering the premises.

When an employee potentially contracts COVID-19 in the workplace, there is a potential workers’ compensation claim. Contact legal counsel if an employee claims he or she was infected on the job and files a workers’ compensation claim. COVID-19 is a recordable illness if the worker is infected on the job. If there is evidence that the employee contracted the virus in the workplace, contact legal counsel regarding possible OSHA reporting obligations.

What If An Employee Had Exposure to Someone With Confirmed or Suspected COVID-19?

On April 8, 2020, the CDC issued new guidance on employees who may have been exposed to COVID-19, focusing on implementing precautionary measures in the workplace, rather than sending employees home for self-isolation, as was the practice previously. A potential exposure is either through contact with a household member with COVID-19, or having come within 6 feet of someone who has a confirmed or suspected case. The time frame for an employee’s contact with an individual includes the period of time of 48 hours before the individual became symptomatic.

The CDC advises that as long as the employee has no symptoms he or she should remain at work and adhere to the following practices prior to and during their work shift:

  • Pre-Screen: Employers should measure the employee’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
  • Regular Monitoring: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees’ supplied cloth face coverings in the event of shortages.
  • Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

If an employee becomes sick during the day, they should be sent home immediately. Surfaces in their workspace should be cleaned and disinfected. Prepare a list of persons who had contact with the ill employee during the time the employee had symptoms and 2 days prior to symptoms. Others at the facility with close contact within 6 feet of the employee during this time would be considered exposed.

Other Considerations:

  • Employees should not share headsets or other objects that are near mouth or nose.
  • Employers should increase the frequency of cleaning commonly touched surfaces.
  • Employees and employers should consider pilot testing the use of face masks to ensure they do not interfere with work assignments.
  • Employers should work with facility maintenance staff to increase air exchanges in room.
  • Employees should physically distance when they take breaks together. Stagger breaks and don’t congregate in the break room, and don’t share food or utensils.
  • Provide disposable wipes, gloves, no-touch disposal trash cans and hand sanitizer for use by employees.

If employers opt to require employees to use face coverings, the employer should bear that cost, or alternatively reimburse the employee their cost. The CDC guidance does not mention gloves. Based on your business operations, it may be prudent to consider implementing a protocol that requires employees to wear gloves while performing their job duties and educate the employees on best practices on how to use and dispose of gloves.

Educate and train employees on good hand hygiene and how they can reduce the spread of COVID-19:

  • Post the CDC printable flyer in the workplace: https://www.cdc.gov/coronavirus/2019-ncov/downloads/Essential-Critical-Workers_Dos-and-Donts.pdf
  • Post, circulate or email information advising any or all of the following:
    • Hand hygiene.
    • Cough and sneeze etiquette: cover your mouth and nose with a tissue when you cough or sneeze or use the inside of your elbow. Throw used tissues in the trash and immediately wash hands with soap and water for at least 20 seconds. If soap and water are not available, use hand sanitizer containing at least 60% alcohol.
    • Avoid close contact with sick persons.
    • Avoid touching eyes, nose, and mouth with unwashed hands.
    • Avoid sharing personal items with co-workers (i.e. dishes, cups, utensils, towels).
    • Avoid using other employees’ phones, desks, offices, or other work tools and equipment, when possible. If necessary, clean and disinfect them before and after use.
    • Follow the policies and procedures of your employer related to illness, cleaning and disinfecting, and work meetings and travel.
    • Stay home if you are sick, except to get medical care.
    • Inform your supervisor if you have a sick family member at home with COVID-19.
    • Clean AND disinfect frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, and doorknobs. Dirty surfaces can be cleaned with soap and water prior to disinfection.
    • Practice social distancing.

Many local cities and counties throughout California are enacting orders requiring employers to provide personal protective equipment to employees among other items.  For example, as of midnight on April 9, 2020, the Los Angeles Mayor Garcetti’s Worker Protection Order becomes effective.  The order requires the following in Los Angeles City:

  • Employees still working must wear fact coverings over their noes and mouths while performing their work. The face coverings only have to be fabric, such as scarves and bandanas (not medical-grade masks or N95 respirators).  Employer must provide at their own expense the non-medical grade face covering for the employees.
  • All essential, non-medical workers required to wear these face coverings must frequently (at least once a day) wash any reusable face coverings.
  • Single-use covering must be discarded into trash receptacles.
  • Employers must permit employees to wash their hand at least every 30 minutes.
  • Employee must have access to clean, sanitary restrooms, stocked with all necessary cleaning products or sanitizing agents required to observe hand sanitation protocols recommended by the Los Angeles County Department of Public Health.
  • Employers must implement social distancing measures for customers, visitors, and employees that provides a six-foot buffer between individuals.
  • All customers and visitors to a business must wear face coverings (again, not medical-grade, just some type of fabric)
  • Business owners may refuse admission or service to anyone who fails to wear a face cover.
  • The Mayor encourages, but does not require, all retail businesses to install plexiglass to separate cashiers and customers at all points of sale.
  • The Order is effective until the end of the local emergency period.

Los Angeles County Department of Public Health has also issued a Safer At Home Order on March 21, 2020.  This Order applies to all retail food facilities, including grocery stores and restaurants.  The Order requires the following:

  • Enforced social distancing.
  • Provide public access to hand washing facilities with soap and water or to hand sanitizer that contains at least 60 percent alcohol.
  • Post a sign a visible place at all public entries that instructs members of the public to not enter if they have symptoms of respiratory illness, including fever or cough. Click here to download the sign.
  • Follow communicable disease control recommendations provided by the LA County Department of Public Health: http://www.publichealth.lacounty.gov/media/Coronavirus/
  • Sets forth requirements for a food employee that has tested positive for COVID-19 or is presumed positive based on symptoms associated with COVID-19.

The California Restaurant Association provides a great resource local city and county restrictions throughout California at its website located here: https://www.calrest.org/coronavirus-resources#restrictions

Employers need to check with their local city and county government orders to ensure compliance.